CLAIM NO. E714403
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 22, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by BILL H. WALMSLEY, Attorney at Law, Batesville, Arkansas.
Respondents No. 1 and 2 represented by LEE J. MULDROW, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 and 3 represented by CHRISTOPHER GOMLICKER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on July 31, 1998, finding that claimant sustained compensable carpal tunnel syndrome to her right upper extremity arising out of and in the course of her employment beginning in June of 1997, that claimant failed to show that her employment was wrongfully terminated and that claimant has proven entitlement to temporary total disability benefits for a period beginning on August 22, 1997, and continuing until a date yet to be determined. Based upon our de novo review of the entire record, we find that claimant has proven by a preponderance of the evidence that she sustained a compensable carpal tunnel syndrome. We also find that claimant has failed to prove by a preponderance of the evidence that she was wrongfully terminated. Finally, we find that claimant has failed to meet her burden of proof with regard to entitlement to temporary total disability benefits. [3] At the hearing held on May 18, 1998, claimant contended that in addition to her first gradual onset injury in 1994 that she suffered a second compensable injury by gradual onset beginning in June of 1997 in the form of carpal tunnel syndrome. Claimant further contended that this second injury was separate and distinct from her first diagnosis of overuse syndrome in August of 1994, and that as a result of this new injury she was wrongly terminated. Finally, claimant contended that she is entitled to temporary total disability benefits, medical treatment, and attorney’s fees as a result of her June 1997 gradual onset injury. Respondent No. 2, the carrier at the time of claimant’s August 1994 admittedly compensable injury, contended that claimant’s current condition is not causally related to her 1994 injury. Alternatively, Respondent No. 2 contended that claimant’s current condition does not meet the statutory requirements for a compensable injury. Likewise, Respondent No. 3, the carrier at the time of claimant’s onset of problems in 1997, contended that claimant’s alleged injury was neither the result of rapid repetitive motion nor the major cause of her current disability or need for treatment. Respondents No. 1 and No. 3 further contended that claimant was not wrongfully terminated from her employment. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has proven by a preponderance of the evidence that she sustained compensable carpal tunnel syndrome by gradual onset beginning in June of 1997. We further find that claimant has failed to prove by a preponderance of the evidence entitlement to any temporary total disability benefits arising out of this gradual onset injury. [4] With regard to the wrongful termination finding, the Administrative Law Judge found:
[5] Neither party has appealed from this finding. Accordingly, we would affirm and adopt the findings and analysis of the Administrative Law Judge with regard to this issue. [6] The record reflects that claimant began working for respondent employer in June of 1989. Respondent manufactures laminating film for driver’s license covers and book covers. In addition, respondent manufactures the plastic bags or coatings (the record is unclear with respect to the specific item manufactured) for Frito-Lay Products. During her employment, claimant developed pain and numbness in her right forearm and hand in 1994 when CNA Insurance Company was on the risk. Claimant’s condition at that time, was accepted by CNA as a “Medicals Only Claim”. The record reflects that after receiving treatment for the 1994 overuse syndrome, claimant was removed from operating the doculam rewinder machine which she contended caused the development of her symptoms. Claimant missed only six days of work in 1994. Upon returning to work claimant was assigned various duties other than operating this doculam rewinder. Claimant testified that throughout the period from 1994 until 1997, claimant did not consult a doctor for any problems associated with her right upper extremity and that she did not require any prescription medication for that condition. Due to unrelated medical concerns, claimant was held off work by her physicians for the birth of a child and for a heart problem during this time frame. In fact, claimant missed almost one year of work from May of 1996 through April of 1997, during the latter stages of her pregnancy and following the birth of her third child. When claimant returned to work in April of 1997, she was placed in the shipping department because they needed extra help. Contrary to the testimony of all other witnesses, claimant testified that her job duties in the shipping department did not involve flexion, extension, or rotation of her right wrist. Claimant returned to work in the shipping department until June of 1997 when she was then placed on the doculam rewinder. According to claimant’s testimony, within two to three days after operating the doculam rewinder, she began to experience somewhat similar but more severe pain in her right wrist and forearm than she had experienced in 1994. Claimant described the pain as intense pain which traveled all the way up to, and including, her elbow. [7] The record reflects that although the claimant was assigned to the doculam rewinder from June 1, 1997 until she terminated her employment on August 27, 1997, she was occasionally assigned to the shipping department. Due to a temporary shortage in the shipping department, claimant was occasionally assigned to that department when extra help was needed. Claimant testified that she even worked in this department a week or two prior to her termination. After an employee from the shipping department was let go, claimant posted or bid on his job. This occurred sometime after claimant was placed on the doculam rewinder in June of 1997. The record reflects that claimant was not considered for this job since she had too many unexcused absences when she would call in and fail to work on the weekends. The position in the shipping department was bid upon by over 40 employees. The record reflects that the shipping department jobs are in high demand since they are five days a week, eight hours per day, jobs with no weekend requirements, whereas all other jobs, with the exception of office jobs for this respondent-employer, require the employees to work 12-hour shifts and to work every other weekend. [8] The medical records introduced into evidence reflect that claimant was seen by Dr. D. L. Staggs on August 14, 1997, with complaints of shooting pain in her right arm for the past three years. Claimant specifically advised Dr. Staggs: “it’s worse last six weeks, I can’t hold anything c/it.” Claimant continued to treat with Dr. Staggs for her arm pain which he diagnosed as tendonitis until October of 1997, at which time he referred her to Dr. Scott Schlesinger, a neurosurgeon, in Little Rock. After examining the claimant on October 13, 1997, Dr. Schlesinger reached the following conclusions:The preponderance of the evidence fails to show that claimant’s employment was wrongfully terminated, purposes of the Act.
. . . she has tried wrist splints in the past for what she was told was tendinitis. She says this did not give her a great deal of relief. Some of her findings suggest some carpal syndrome, i.e., the motor exam. There are some findings more suggestive of possible ulnar nerve involvement, i.e., the sensory exam. I really don’t know what to make of this and I would like to get an EMG and nerve conduction test of the right upper extremity. She will remain off work until she comes back to see me. This may also be a problem of over use of the right forearm and the tendons thereof. If it is truly present, the weakness in the right upper extremity is most suggestive of median neuropathy. Another possibility would be a C8 radiculopathy, but this would be unusual as it spares the upper arm. However, if the EMG and nerve conduction test does not clearly delineate the etiology of her problems, we will need to do an MRI scan of the cervical spine specifically looking at the right C7-T1 areas. . . .
The EMG/NCV report prepared by Dr. Bob W. Smith revealed:
[9] After receiving claimant’s EMG/NCV tests, Dr. Schlesinger referred claimant to Dr. Michael Moore, a hand specialist. After examining the claimant on November 9, 1997, Dr. Moore concluded that claimant’s symptoms were consistent with mild right carpal tunnel syndrome and he ordered a triphasic bone scan. Dr. Moore felt that claimant was capable of returning to light-duty work although additional testing was recommended. [10] The record reflects that Respondent No. 3 controverted the compensability of claimant’s carpal tunnel syndrome after receiving Dr. Moore’s report and the triphasic bone scan was never obtained. [11] Since the claimant asserts that she sustained a work-related gradual onset of carpal tunnel syndrome, the claimant is not required under the provisions of Act 796 of 1993 to establish that her work duties required rapid repetitive motion in order to establish the compensability of her carpal tunnel syndrome injury. See Kildow v. Baldwin Piano Organ, 333 Ark. 335 ___ S.W.2d ___ (1998). However, the claimant must still prove that she sustained a carpal tunnel syndrome injury arising out of and in the course of employment, that a work-related injury is the major cause of her disability or need for medical treatment, and the compensable injury must be established by objective medical findings. See, Id. [12] Respondent argues that the two to three days work on the doculam rewinder in June of 1997, which brought on claimant’s pain is not sufficient to meet the major cause requirement for proving the compensability of her claim. Ark. Code. Ann. §11-9-102(5)(E)(ii) requires proof by a preponderance of the evidence that claimant’s injury was the major cause of the disability or need for treatment. In this regard, we agree with the respondent. However, the medical evidence reveals that claimant did not report to her physician seeking treatment until August of 1997, almost two and a half months after she was resumed work on the doculam rewinder. When claimant first sought medical treatment she reported a history of pain in her upper extremity for the past three years which had increased during the past six weeks. This history, we find, to be credible and consistent with claimant’s work activities. [13] Accordingly, when we review the evidence of record, we find that claimant has proven by a preponderance of the evidence that she sustained carpal tunnel syndrome which arose out of and in the course of her employment which caused internal physical harm to her body as evidenced by the positive EMG/NCV tests suggestive of mild right carpal tunnel syndrome. We further find that claimant has proven by a preponderance of the evidence that the cause of her carpal tunnel syndrome was the repetitive or rotational work duties she was required to perform after she was placed on the doculam rewinder in June of 1997. Accordingly, we find that claimant has proven the compensability of her carpal tunnel syndrome. [14] In his Opinion, the Administrative Law Judge further found that claimant’s gradual onset of pain in June of 1997, was the sole responsibility of Respondent No. 3. In reaching this finding, the Administrative Law Judge dismissed Respondent No. 2 as a party-respondent. Neither party appealed this finding. Accordingly, we find that the decision of the Administrative Law Judge assigning all liability for claimant’s gradual onset injury in 1997 to Respondent No. 3 should be affirmed. [15] Finally, although we find that claimant has proven that she sustained a compensable carpal tunnel injury to her right upper extremity in or about June of 1997, we find that claimant has failed to prove entitlement to temporary total disability benefits resulting from this injury. Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark.State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Arguably, claimant was within her healing period for her carpal tunnel syndrome when she terminated her employment on August 22, 1997. However, this does not mean that claimant was totally incapacitated from earning wages at that time. On the contrary, the evidence reflects that claimant was performing all of her assigned job duties in the shipping department as most recently as one to two weeks prior to her termination in August of 1997. In her deposition which was taken two months prior to the hearing, claimant was asked: [16] Q. Okay. If they had returned you to the position that you posted for, the shipping job . . . [17] A. Yes. [18] Q. . . . do you feel that you could have handled that job? [19] A. Yes, I do. [20] Q. Okay. Even though your symptoms were worse than they were before this aggravation? [21] A. Yes. The shipping job I was able to do. I was doing that, you know, for quite a while. I was able to do it without accommodations from them. Things that would bother me, the ladies that worked in shipping, or the guys, they would help out. Things that I couldn’t do, you know, we would work it between us, you know. [22] Q. Okay. [23] A. And I was able to do that job. I had the seniority for that job, as far as experience and everything. [24] Q. Okay. So you feel that the only reason you’re not working back with the company right now is because they would not give you that job? [25] A. Will you repeat that, please? [26] Q. The reason that you’re not working for Bryce LLC right now is because they would not put you back on the shipping job? [27] A. No. I feel the reason I’m not working there is because — I mean the only choice they gave me was a Frito rewinder, and it was a job I could not do. I know that. [28] Q. I understand. And had they offered you the job that you posted for, you feel that you would still be working there, is that right? [29] A. Yes, I do. [30] Q. Okay. Now the one thing I want to make sure that I have clear is that you said that you knew that you could do the shipping job because you had done it before. [31] A. Yes. [32] Although at the hearing claimant qualified her testimony stating that she did not know if she could do the work but she would have welcomed the opportunity to, her deposition testimony unequivocally showed that claimant could perform her job duties in the shipping department. In fact, claimant’s ability to perform the work in shipping just one to two weeks before the termination, which was clearly after she sought medical treatment for her gradual onset injury, revealed that she was not totally incapacitated from earning wages. [33] The record further reflects that claimant was offered work in what was classified as a less strenuous rewinder, or Frito Lay rewinder, this machine required less repetitive wrist movements than the doculam rewinder. However, she refused this job. Although claimant denied she refused this employment because it would require her to work on weekends, there is evidence in the record to refute her testimony. Charlotte Davis, one of claimant’s co-workers, testified that claimant refused the Frito Lay rewinder position because it would require her to work weekends making it difficult to obtain babysitting for her young children. Ms. Davis further testified that the work on the Frito Lay rewinder actually involved less upper arm movement than the job claimant was performing in the shipping department. [34] Since terminating her employment on August 27, 1997, claimant has not sought further employment. Rather, claimant has been content to remain at home and care for her children, two of whom are not yet of school age. Claimant testified that while staying at home, she performs numerous activities necessary to care for her children and to maintain and upkeep her home. In our opinion, claimant’s ability to work in the shipping department, together with her ability to perform the demanding job of caring for two young children every day and to perform the hand and upper extremity tasks of cooking, cleaning, bathing, feeding and diapering children, reflects that she is not totally incapacitated from earning wages. If she so wanted, claimant could have remained an employee of respondent-employer and operated the Frito Lay rewinder which required less upper extremity motions than her other jobs. Furthermore, when considering claimant’s capacity to return to work, we are persuaded by the fact that Dr. Moore did not deem claimant’s condition serious enough to remove her from work although he ordered additional testing. [35] After reviewing the evidence, we find that claimant has failed to prove by a preponderance of the evidence that she remained totally incapacitated from earning wages although she was within her healing period for her carpal tunnel syndrome. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence entitlement to temporary total disability benefits as a result of her carpal tunnel syndrome. [36] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be, and hereby is, affirmed in part and reversed in part. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [37] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 to be paid one-half by claimant and one-half by respondent. Ark. Code Ann. § 11-9-715(a)(2)(B) and § 11-9-715(b)(2). [38] IT IS SO ORDERED.Mildly slowed right median sensory nerve conduction velocity across the wrist segment otherwise normal studies.
The above abnormality is very mildly abnormal and would need to be clinically correlated for the significance in relation to median nerve compression as in carpal tunnel syndrome.
_______________________________
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner
[41] I concur with the opinion of the majority finding that claimant has proven by a preponderance of the evidence that she sustained a compensable injury in the form of carpal tunnel syndrome. However, I must respectfully dissent from the majority’s finding that claimant is not entitled to any benefits for temporary total disability. [42] The majority believes claimant would be able to perform the Frito-Lay rewinder position with the employer. However, in my opinion, there is insufficient evidence that claimant could perform this job without difficulty. In fact, claimant testified that her symptoms increased when she performed this job in the past. I would also point out that claimant was never offered any job in the shipping department. Claimant was given the option of performing the job involving the Frito-Lay rewinder or quitting. Claimant really had no choice but to quit under duress. There was certainly no job offered claimant within the restrictions imposed by her treating physicians. Claimant’s candid admission to limited activities involving childcare and housekeeping is likewise insufficient to support a finding that she has the capacity to earn the same or any part of the wages she was receiving at the time of the injury. [43] Therefore, in my opinion, claimant has met her burden of proving that she is entitled to benefits for temporary total disability.
_______________________________ PAT WEST HUMPHREY, Commissioner